I don't believe we own it ~ but the deal IMO is sweet :)
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On November 21, 2013, through our subsidiary, Level 5 Beverage Company, Inc. (“Level 5”), we entered into an Agreement (the “Brand Licensing Agreement”) with VITAMINFIZZ, L.P, a California Limited Partnership where the Licensee acquires the exclusive rights in North America (the “Territory”) to use VitaminFIZZ® (the “Brand”) on and in connection with the marketing, distribution and sale of the Brand.
The summary of the Agreement is as follows (the entire Agreement is attached as Exhibit 10.1 to this Current Report on Form 8-K filed with the Securities and Exchange Commission):
License.
a) Licensor hereby grants to Licensee, subject to the terms and conditions hereof, the exclusive license in the Territory to use Licensor's Brand, Know-how and commercial and technical information to market, distribute and sell the Products and any other products it manufactures using the Brand to {commercial} customers, which shall include all rights to use in advertising, publicity, or otherwise, any other trademark, trade name or names, or any contraction, abbreviation, or simulation thereof, on and in connection with the marketing, distribution and sale of the Products.
b) Licensor shall provide information on all Know-how, technical information, techniques, and other technical information, as requested, within a commercially reasonable period of time.
c) Licensee shall have the right to grant sublicenses provided that such sublicensees agree to abide by the terms of this Agreement to the same extent as if they were a licensee.
d) Licensor acknowledges that Licensee may hereafter enter into licenses with third parties regarding the sale of other similar products and such sale shall not be deemed to be a breach of this Agreement.
e) Licensor agrees that except for the license herein granted to Licensee it shall not license or sell any products similar to the Products or any other products in connection with the Brand. Percentage Fee and Milestone Payments.
(a) Percentage Fee. The Licensee and Licensor agree that the profit to be recognized by each party shall be earned and distributed as follows: (i) fifty-one percent (51%) of the net revenue derived from the sale of Products under the Brand shall be earned by and distributed to Licensee and (ii) forty-nine percent (49%) of the net revenue derived from the sale of Products under the Brand shall be earned by and distributed to Licensor as license fees. For the purposes hereof, “net sales” shall mean the gross amount invoiced to third parties by Licensee less the sum of: (a) trade, cash and quantity discounts or rebates actually allowed or taken; (b) credit or allowances given or made for rejection of or return of previously sold Products or for retroactive price reduction; (c) charges for insurance, freight and other transportation costs directly related to delivery of the Products; and (d) sales, transfer and other excise taxes levied on the sale of the Products . The payment by the Licensee to the Licensor shall be within thirty (30) days following the calendar month in which payment for the net revenue was received. No percentage fee payment shall be made to Licensor until such time as the aggregate percentage fee payments earned by Licensor exceed Thirty Thousand Dollars ($30,000). The percentage fee shall be computed and paid in accordance with Licensee’s accounting records. All withholding and other taxes that may be imposed on Licensee shall be deducted from the payment of such fees upon provision to Licensor of an official receipt evidencing payment of such taxes. All out-of-pocket expenses related to the manufacture of the Products after the date hereof shall managed by, and the responsibility of, Licensee. Licensor shall have the right to assign and/or sell its revenue interest to a third party upon thirty (30) days prior written notice.
(b) Milestone Payment. If at any time the Licensee’s net sales of Products under the Brands exceeds Twenty Million Dollars ($20,000,000), then Licensee shall pay to Licensor a one-time cash milestone payment equal to One Million Dollars ($1,000,000), payable within thirty days of the end of the first fiscal year in which such net sales are achieved.
Term. The initial term of this Agreement shall be for five (5) years from the date hereof unless earlier terminated pursuant to the terms hereof. Thereafter, so long as Licensee is not in default, this Agreement may be extended by Licensee for five (5) additional years under such terms and conditions as may be mutually agreed to by the parties Licensor. If the parties are unable to agree to renewal terms then, at the election of the Licensee, in its sole discretion, this Agreement shall continue for an additional five year term upon the same terms and condition contained in this agreement. If this Agreement is terminated before the end of the initial term then the Licensee, its agents or sublicensees shall not engage, directly or indirectly, in any part of the business of manufacturing, marketing or servicing of Products based upon or derived from Licensor Know-how for a period of five (5) years.
Board of Directors. Licensor shall appoint a representative to Licensee’s to its board of directors, which shall consist of no more than three (3) members. The by-laws of the Licensee shall further provide that no action may be taken by the Board without notice being given to Licensor’s representative and that any sale of the Licensee or its business operations will require a unanimous vote.
The foregoing description of the Brand Licensing Agreement is qualified in its entirety by reference to the full text of the Brand Licensing Agreement, attached as Exhibit 10.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission and incorporated herein by reference.
On November 21, 2013, we issued the attached press release that included a description of the agreement. A copy of the press release is attached as Exhibit 99.1 to this Report on Form 8-K.
On November 22, 2013, we issued the attached press release that included a reference to the agreement and the appointment of Licensor’s appointee to the Level 5 Board of Directors, Darin Ezra. A copy of the press release is attached as Exhibit 99.2 to this Report on Form 8-K.
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